Europe Starts Debate on Patents

Complicating the issue, some opponents of software patents charge that the voting process instituted by the European patent office is badly flawed and may result in a ruling for patents that would go against the wishes of the majority of European countries.

Open-source organizations such as EuroLinux Alliance for a Free Information Infrastructure and The Association for the Promotion of a Free Informational Infrastructure say that software patents, as they exist in the United States, tend to stifle innovation, create tremendous legal risks for small and medium enterprises and reduce the incentive for knowledge sharing.

Stéfane Fermigier, a spokesman for Eurolinux -- a coalition of pro-open source commercial companies and nonprofit associations -- said that during the last three months the vast majority of European governments have given their official representatives strict instructions geared to postponing any decision on software patents at the Munich meeting.

These countries prefer to wait for the results of an ongoing investigation into the advisability of patents that was recently launched by the European Commission.

But Fermigier says it's not certain that this majority, which he noted represents more than 75 percent of Europe in terms of number of citizens, will be enough to block the plans of the EPO council of administration due to how the voting process will be conducted.

At the Munich conference, representatives of 20 European countries will be considering the "Base Proposal for the Revision of the European Patent Convention," which was drafted by EPO president Ingo Kober.

The EPO also proposes to confer special legislative rights on the administrative council of the EPO, Janos Kovacs, a Budapest-based professor of economics, said.

"The rules were set up by the EPO so that national patent delegations could overrule only by a two-thirds majority. If that doesn't happen, the EPO's decision will become legally binding in all European countries whose parliaments do not specifically opt out of the European Patent Convention," Kovacs said.

Kovacs explained that the voting procedure gives enough power to a pro-patent coalition of small countries such as Liechtenstein and Cyprus, along with countries that are not members of the European Union such as Switzerland and Turkey, that -- together with a weak minority of two EU member countries -- they may be able to force the rest of Europe to legalize software patents.

A vote by the (then) 19 members of the EPO Administrative Council during a Sept. 7 meeting showed Austria, Belgium, Cyprus, Switzerland, Greece, Italy, Liechtenstein, Monaco, Netherlands as the countries voting for patents. Those voting against software patents were Denmark, Germany, Spain, France, Luxembourg, Portugal, Sweden and the U.K. Finland abstained from the vote.